Judgment:
1. As could be gatherable from the averments made in the application, applicant has been yearning for selection to Group `B' cadre from 1995 onwards and for one reason or other, it has not been possible for him to reach his goal. In the application, he has impugned two orders, one issued by the Railway Board dated 09.12.2003 purporting to be for general information but directly concerning his case and the second dated 18.11.2004, which is a speaking order issued by the Railway Board rejecting applicant's claims for a promotional posting after selection.
It may be necessary to advert to the facts presented in the application in some detail for facilitating us to examine as to whether there is substance in his submission that he has been subjected to hostile discrimination and in violation of his fundamental rights.
2. There is reference to an application filed by him in the year 1987, and ultimately, according to him, due posting had been conferred only in the year 1998, but that need not be mixed up with his present contentions or claims, as the same by all standards have become stale.
3. At present, applicant is working as Station Superintendent, Ballabhgarh. It is in the Delhi Division of Northern Railway. Prior to 2003, the station was considered to be a part of the Jhansi Division belonging to Central Railway. The present zone and division was demarcated/created, effective from 01.04.2003 along with other zones duly brought into being. In fact, the creation of the zones has directly affected the applicant's claims, it is submitted and that is the foundation of his grievance.
4. According to applicant, a Notification had been issued by the erstwhile division of Jhansi on 27.03.2001 for formation of a panel of Group `B' service in IRTS cadre of Operating Department. Vacancies have been indicated as 13, which were to be conferred on 9 open merit candidates, 3 scheduled castes and 1 scheduled tribe. The vacancies were for the year 2001. It is not disputed that he had passed the written test but for some reason or other not relevant here, the selection was cancelled on 31.12.2001. The thirteen vacancies were re-notified on 29.03.2002, and the selection process had fairly progressed. But, in the meanwhile, new Railway Zones were in the process of being formulated. The applicant would have been considered as a person, who belonged to the Northern Railway and to have been severed relations with the Central Railway (now known as North Central Railway). Taking notice of the development as above, Railway Board had issued general instructions whereby the selections were to be discontinued.
5. The ultimate result was that selection did not culminate in any final list, and stalemate continued for over one year. A fresh Notification for filling up general and reserved vacancies had come to be issued by the Central Railway on 27.05.2003, and the applicant had been permitted to partake in the selection. As per the rules, the process is to consist of written examination and viva voce. He had come out successfully, but about his eligibility to be empanelled, certain doubts had arisen although they were of no substance. As a via medium only 3 persons were empanelled in the general list and one vacancy was to be kept unfilled, awaiting decision of the competent authority on the issue. Ultimately, the decision was rendered against the applicant.
6. The applicant is seen to have submitted an appeal requesting for a fair treatment, but since no orders were coming, he had filed OA 1079/2004, which had been disposed of on 29.04.2004, at the admission stage with the direction to the respondents that orders on the pending representation of the applicant were to be passed in a time bound manner. But there was no reply forthcoming and it is submitted that he had been constrained to file contempt proceedings as CP 330/2004.
Thereafter, hastily, according to him, an order was passed on 18.11.2004 whereby his claims were declared as having been rejected.
7. The issues are as to whether the applicant would have been entitled to be considered for one of the vacancies of Group `B', which were existing at Jhansi Division while he was working there and as of right was entitled to be considered, and also whether because of the formation of new zones whereby the area where he had been working come within the jurisdiction of another Division and zone, his claims would have been held as not sustainable.
8. According to the applicant, the Railway Board's orders were clear and specific at least as on 13.05.2003. Although it should have been possible to assume that there was conflicting interpretations on earlier dates, since orders with a sense of justice and reality had been issued by the Board on 13.05.2003 ( a copy of which is Annexure A-10), his claims required to be adjudicated on the basis of such final orders and it should not have been diluted on any principles subsequently conceived, as referred to, in the impugned order of 18.11.2004.
9. In a detailed counter reply, the respondents have sought to support the impugned order, by maintaining that apart from considering the matter by adopting principles of general standards, there was no instance of any discrimination as far as claim of the applicant was concerned, and the contentions in this regard are without substance.
Particularly, it is submitted that Annexure A-10 may not have been usefully employed for determining the claim of the applicant and after formation of the new Division where he was reckoned as having worked after 01.04.2003, it could not have been possible for him to contend that in respect of the vacancies which had arisen in the erstwhile Division, he could have been permitted to stake a claim, notwithstanding that he had been permitted to partake in the selection.
A decision after mature consideration had been taken by the Railway Board it is asserted. It is contended by Mr. R.L. Dhawan appearing on behalf of the respondents that the proceedings of the Railway Board are just, bona fide and in accordance with rules and instructions and there is no reason or justification for the Tribunal to interfere in the matter.
10. The question to be decided, therefore, lies in a short compass as formulated earlier. It is as to whether it should have been admissible for the applicant to claim accommodation against a vacancy, which existed as on the date of formation of a new Division or whether it should have been possible for the Administration to contend that as he was outside the zone and division, he could not have rightfully claimed any of such posts and he had to wait for opportunities in new division, to which he belongs after segregation.
11. It is evident that by a Notification dated 04.07.2002, Central Government constituted eight new Divisions (underline supplied) w.e.f.
01.04.2003, which is seen from Annexure R-1 produced. Obviously, apart from making such a Notification, the Central Government had no function whereby the rights and obligations of persons affected were to be specifically adverted to or settled. The relevant fact is that Notification had been issued on 04.07.2002 well before the actual date on which it was to become operational. The manner, in which the employees were to be accommodated, was not a new poser, since formation of divisions and zones and repatriation of employees, notional or otherwise had been well experienced as far as the Administration was concerned. The applicant has made available Annexure A-8, which is a Railway Board's letter dated 25.09.2002, where the Board had indicated that panels for selection for promotion to Group `B', which were already under process are to be declared with reference to the original number of vacancies for which the selection was notified. However, it had been cautioned that adequate care may be taken and the panels to be operated to the extent of actual vacancies in the residual jurisdiction of the Railway after the new zones came into existence and keeping in view the number of Group `B' officers of the Railway who had opted for transfer to a new zone.
12. Annexure A-9 was one of the next orders passed by the Board dated 11.11.2002, a reading of which may indicate that inclusion in a panel might have been valid so long as the incumbent remained in the parent Railway only. In other words, if they were transferred to new zones on the basis of their options, they have to wait for promotions in their turn as per the option. But the later order dated 13.05.2003 (Annexure A-10), which was issued after the formation of the new zones, sufficiently has taken adequate care of persons, who were situated similar to the applicant. Obviously it has to necessarily include change of divisions as well. It had been prescribed, citing the order dated 11.11.2002, that fresh selections may be notified for vacancies upto 31.03.2003 for all vacancies of the undivided Railway Group `C' staff who have opted for a new zone. They would also be eligible for these selections but an empanelled candidate can get Group `B' promotion only in the parent Railway and cannot be posted in Group `B' on the new zone based on such panel. Paragraph 5 (a) of the order dated 13.05.2003 also indicates that since the new zones would not be able to hold selections for promotion to Group `B' for quite sometime, the parent Railway may hold the selections for the period from 01.04.2003 onwards, for filling up Group `B' vacancies in the parent Railway plus the vacancies in the divisions, which originally belonged to the parent Railway and which have now gone to a new zone. However, only Group `B' vacancies of the Headquarters of the new zones were excluded from its purview. Paragraph 5 (d) and (e) was also clarificatory in nature and it could be extracted hereinbelow: (d) For the selections/LDCEs to be conducted by the parent Railway, all Group `C' staff who had earlier held a lien on the parent Railway and who are presently working in the new zone (whether in the headquartes office or in the divisions, workshops etc.
transferred from the parent railway to the new zone), would also be eligible.
(e) After formation of fresh panels for selection/LDCE the empanelled candidates may similarly be posted on either Railway depending upon the availability of vacancies, but they will have their seniority in Group `B' on the parent Railway.
13. The applicant has taken pains to show that, in fact, Group `B' vacancies existed from the year 2002 onwards. Annexure A-4 dated 23.07.2001 referred to 13 vacancies in the Operating Department to which selection process was issued to be carried out and applicant had participated. Annexure A-5 dated 31.12.2001 but cancelled the selection. A re-notification had been made through Annexure A-6 on 19.12.2002, and in the selection the applicant had participated.
According to him, he came out successful. It has again been cancelled by Annexure A-7 on 23.05.2003. The next selection was a continuation process, as would be evident from Annexure A-7 dated 27.05.2003. In paragraph 4.10 of the reply statement, it is admitted that the applicant came under the zone of consideration and appeared for the written test, in which he qualified and was called for the viva voce.
The apparent reason given for not selecting him and conferring appointment was as following: As the applicant was working at Ballabhgarh Station at Palwal - Tughalabad section and that section has gone to Delhi Division w.e.f. 01.04.2003 as per rules i.e. as in where is basis the staff of that section became staff of Delhi Division of Northern Railway.
14. Now by Annexure A-1 order, attempt is to give a clarification by stating that the concept of closure of cadre applies only to Headquarter offices of new zones/new divisions and not to line/field staff of sections transferred on 'as is where is basis' to the existing Railway/Division or even to new Railway/Divisions. The concerned section where the applicant is working is stated as one transferred to Delhi Division and hence it became part of the Northern Railway.
Therefore, the staff working there are to be `interpolated' with the Delhi Division w.e.f. 01.04.2003 and considered for selection accordingly in the Northern Railway and they cannot be included in the selection in question conducted by the Central Railway after 31.03.2003. The same is the reasoning given by the order dated 18.11.2004.
15. If we critically examine the case, we have to agree with the learned Counsel for the applicant that the approach is per se artificial and discriminatory. We had referred to the Annexure R-1 Notification of Govt. of India dated 04.07.2002. What is stated is that eight new divisions are constituted w.e.f. 01.04.2003. It is reiterated that the eight new divisions shall, w.e.f. 01.04.2003, exercise jurisdiction in respect of the areas as indicated in the Notification.
If this is the position to be taken note of, we do not find any justification for a clarification, which attempts to indicate that Division where the applicant is working after 01.04.2003 is not a new Division. The approach is per se arbitrary and attempts to confer benefits only to a section of employees. By a mature consideration when the Railway Board had passed Annexure A-10, the result would have been that the applicant could be considered for a vacancy, if it existed prior to 01.04.2003 in his former division and he could have rightly participated in the selection. In respect of new vacancies of course the employee would have had no claim. This is the essential difference we find.
16. A volte-face whereby a person's rights are attempted to be nullified cannot be considered to be fair or just. We are of the opinion that the applicant's rights to be included in the panel for selection of Group `B', consequent to his participation through the selection, Notification Annexure A-7 was regular and warranted. Since his eligibility is not disputed and a vacancy had been kept unfilled, and as he had been pursuing the matter all throughout, we are of the opinion that he should have been properly accommodated against one of the Group `B' posts. It would have been possible for him, therefore, to take advantage of the above selection for postings in the newly formed division where he is working by operation of law and not on his own volition w.e.f. 01.04.2003.
17. Resultantly, the impugned orders are set aside. Second and third respondents are to take notice of the directions as above and take all steps to implement the directions whereby benefits of Group `B' post are afforded to the applicant in letter and spirit of course if he had been adjudged as successful. Such orders are to be passed latest by 29.02.2008.